Posted
by
kdawson
on Friday August 14, 2009 @09:43AM
from the cracks-in-the-dam dept.

Handbrewer writes "The FreeBSD developer Poul-Henning Kamp (phk) has sued Lenovo in Denmark (Google translation, original here) over their refusal to refund the Windows Vista Business license, even though he declined the EULA during installation. Lenovo argues that they sell the computer as a full product, and that they cannot refund it partially, such as the power supply or the OS even if people intend to use a different one. This seems to be contrary to previousrulings in the EU where Acer and HP has been forced to refund the 'Microsoft tax.'"

Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?

Btw, the US do not have a justice system, it only has a punishment system.

Sadly I can vouch for that. My mom was selected for jury duty a couple of years back in an Arson case. She ended up hanging the jury 11 to 1 and causing a mistrial. Why? Because the other 11 said "the defendant is Italian and haven't you ever seen Goodfellas? He is probably in the mob and must have done it"

It didn't matter that there wasn't any actual...oh what is the word? oh yeah, EVIDENCE, or that the guy had to file bankruptcy because he didn't have enough insurance to actually cover his losses, or that even the fire investigator admitted on the stand he couldn't say for sure WHAT had actually caused the fire, they had seen Italians on TV are mobsters and therefor he did it.

Sadly when hearing this I was reminded of that old saying that 'juries are 12 people too stupid to get out of jury duty". If mom hadn't been civic minded and actually went that guy would be doing 3 to 5 for being Italian and having a jury who had seen Goodfellas. Sad but true.

I would argue that that is not true. In principle all citizens are your peers. In reality, that's not true. Tell the poor, black guy that gets convicted by an all white, middle-class jury when he was innocent, that he was convicted by his peers.

No double jeopardy? Well technically you are right, but tell that to OJ. Whether or not you think he was guilty, he still got "punished" in a civil trial after winning the criminal one. The guy doesn't get convicted for murdering your relative? No problem, just file a wrongful death suit in civil court where the burden of proof is less.

Well - who DOES understand our system? Certainly not the lawyers, or the liberals who like to tamper with the system.

We imprison more people per capita than countries such as the Evil Iranian Empire, or the Evil Communists of China, or a lot of other nations that might surprise you. We may even compete with the DemiGod of North Korea, but statistics on North Korea are hard to get, and harder to substantiate.

Seems obvious to me that NO ONE understands our system. We sure as hell don't rehabilitate very ma

Are you really so uninformed as to believe the majority of the people in this world have a deep understandings of the workings of their own legal systems let alone all the particulars of the legal systems of all the other countries of the world?

Or did it just seem like a convenient time to bash the ignorant Americans and get modded up for it?

Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?

No but it seems you are. Here's a nice "fuck you" list for the ignorant US-basher.

AustriaThe Austrian Code of Civil Procedure (Zivilprozessordnung â" ZPO) does not provide for a special proceeding for complex class action litigation.

CanadaProvincial laws in Canada allow class actions. All provinces permit plaintiff classes and some permit defendant classes. Quebec was the first province to enact U.S.-style class proceedings legislation in 1978. Ontario was next with the Class Proceedings Act, 1992. As

Are you really so totally uninformed about the world outside your own country?

Why the heck should any American care about Europe? You seem to think that the world should be interested in Europe like it is self evident, and honestly I see no reason to care at all. The Japanese make better stuff than you, the Chinese are cheaper than you, Israelis and Indians are smarter and the Mexicans make better food.

Class action suits don't help anyone but the lawyers. I've been contacted by lawyers pressing class action suits against various companies, but I never reply any more. Gyped out of a hundred buck by some ratty product, and you get maye five bucks out of the deal while the lawyers get millions. It's not even worth sending the card back in.

Or even better to make them offer Windows as a totally separate product, not automatically part of every computer purchase.

Let's not lose sight of who is to blame, though. (I take that back: let's lose sight after all, because it's more complicated than most people suspect.) Microsoft sells a product to Lenovo. Lenovo resells it. Microsoft puts wording on a paper or the screen, saying that if you don't want their stuff, Lenovo will give you your money back. WTF? How can Microsoft speak for Lenovo? Pretty damn arrogant. Did Lenovo agree to that?

Actually, that's a very serious question: Does Lenovo become bound to the EULA? Are they re-selling Windows or re-licensing it?

The Blizzard case's judge asserted that "title transfers" don't ever happen with software. Nothing is ever sold. Ergo, if you walk into a retail store and pay cash for a Blizzard game just like you would for a loaf of bread, you're not actually buying it. That means the retailer never bought it either. Ergo, the retailer must have licensed it as well (though they never even opened the package so never even implicitly agreed to the EULA -- ah, the mystical magic of EULAs, the only kind of contract of its kind!).

The Blizzard judge would say that Lenovo signed a contract in blood with both Microsoft and the computer purchaser, and therefore Lenovo agreed to every term Microsoft put in the license: Lenovo must pay the refund that Microsoft offered. Any layman would say Lenovo is just a reseller and has no obligation to Microsoft to pay refunds on their behalf; the EULA is between Microsoft and whoever reads it -- but that layman also wants his money back and damn well knows Microsoft ain't gonna pay it.

Of course Lenovo is not bound to the EULA. Lenovo is not the EU, End User. They have a different agreement/license/contract.

The EULA specifies that the user may decline by returning the purchased copy and destroying all backup copies. But if the OEM is not bound, then the user has no way to decline. In this case, the consideration [wikipedia.org] on the user's part is dubious, and the user is likely not bound by anything but the same laws that apply to someone who buys a book: sale of goods law and copyright law. I don't know about Denmark, but in at least the United States, it is not an infringement for the owner of a copy of a computer program (where state law defines "owner") to copy the program into a computer to use it (17 USC 117).

No they don't promise to refund, the OEM license says: "However you may compensate end users for Software or Hardware returned to you under the License Terms." (http://www.microsoft.com/oem/sblicense/default.mspx) . Note the may. Also, OEM licensing involves buying the licenses in bulk for a large discount. In that sense the OEM is a reseller because they are using multiple customers' purchases to qualify for the bulk discounts.

They aren't just buying a copy of Windows off the shelf and installing it on t

Which means the Uniform Commercial Code doesn't apply. I doubt he considered the implications of that, though; he just wanted to rule for Blizzard. However, that was a US case and this is in Denmark...

Your analogy would work if there was a note in the car saying that you either agree to an additional contract regarding your use of the tires, or the dealer will refund the price of the tires and take them back.

When buying a new car you can in fact let the dealer know that you do not want the stock tires and wheels. You can then work a deal with the dealer to pay less for the car. Or. You can sell the stock tires and wheels as you paid for them and now own them. The same is not true for a software license.If the car dealership sells you the car. Offers no way to not pay for certain parts and then makes it illegal to sell any of the parts you bought and no longer want then you would be correct. Another horrible/.

Indeed, Lenovo has made it abundantly clear that they want to Microsoft whores. That's why, although I love my T61, I recently bought a Dell Latitude E6500 when I needed a new computer. Dell couldn't sell it in the configuration I wanted without Windows, but they gave me an $80 discount when I told them I'd be using Linux! It's a solid laptop, metal hinges and all -- good riddance, Lenovo!

Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund. In order to use Microsoft Windows, you must accept their EULA. Unless you are claiming the Lenovo forced him to agree to the EULA prior to purchasing the computer, then those terms were undisclosed up to the point where he booted the computer and was presented with them.

And if he doesn't like the product he purchased, he can return it for a full refund. But that is not what he is doing - he is trying to force the manufacturer to change the product to his liking, which they have no obligation to do.

That is true, and I did not say anything contrary to that. What I am objecting to is the notion that somehow you have a right to FORCE a manufacturer to make a product by suing him. If you don't want the product as offered, don't buy it. If you want to make a point, buy it and return it saying 'I don't agree with the EULA, so you lost a sale'. Suing someone for not offering a product you want to buy is just asinine.

No, the EULA states to you must ask the manufacturer what the return or credit policy is. Lenovo says the policy is return the laptop. That fulfills the EULA, and makes the guy whole (he is not out anything). If Lenovo said the policy was 'too bad, you bought it, no refunds' then the guy would have a claim. What the guy wants to do is unilaterally redefine the terms of the sale, from hardware+OS to hardware only, and Lenovo is under no obligation to honor a one-sided deal like that.

Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund.

For the whole product, yes. Not piecemeal parts.

In order to use Microsoft Windows, you must accept their EULA. Unless you are claiming the Lenovo forced him to agree to the EULA prior to purchasing the computer, then those terms were undisclosed up to the point where he booted the computer and was presented with them.

Oh bullshit. He knew the terms before buying the product. To claim otherwise is just disingenuous. Secondly, the EULA doesn't state that the retailer of the product is obligated to refund the user's money for the Microsoft license.

By using the software, you accept these terms. If you do not accept them, do notuse the software. Instead, contact the manufacturer or installer to determine theirreturn policy for a refund or credit.

And if their policy is "no partial returns, if you don't like the package we sold you then return it (yes, all of it)." then everything seems legally fine and dandy to me. They accept that you do not want what they sold you and will now take the product back in exchange for some/all of your money back.

The wording in the Danish version of the EULA is slightly different. Translated to English it reads

By using the software, you accept these terms. If you do not accept the terms, you do not have the right to use the software. Instead, contact the manufacturer or installer to get information on how you get a refund for the purchase or credit nota.

This can interpreted as giving the user the right to return Windows, without returning the entire computer. Similar cases have been taken to court in Italy and France (against HP and Acer, respectively), where both vendors were ordered to pay a refund for Windows.

This raises a couple of issues with the law that I have often wondered about.

Under UK law, and I imagine most EU country's law, a contract has to confer some benefit to both parties. The contract can't just be "give me money", you have to give something (like a service or goods) in return. If you decline the EULA, you could argue that either the computer is now useless to you and so you receive no benefit from it (it doesn't do anything without an OS). Of course you could install Linux but the agreement was

The computer manufacturers aren't obligated to sell him a computer in the way he wants it.

And the author of the EULA isn't obligated to offer a refund in the EULA. Lenovo isn't obligated to bundle that refund offer with their computer. But Microsoft and Lenovo did that. Somebody (whether you think it's Lenovo or Microsoft) TOLD the user, in writing, they can have their money back if they don't want Microsoft's crap.

They weren't obligated to sell him a computer the way he wants it, but then they said, "Ok, you can have it the way you want it, and here's our offer written in legalese." So, dude, are you really sure they're still not obligated to sell him a computer the way he wants it? He has a piece of paper that says they are, and he didn't write the words on that paper.

The EULA doesn't obligate Lenovo to refund him the money. The EULA even says that if the retailer doesn't give you a refund to conteact Microsoft or a regional Microsoft associate to see their refund terms.

you can buy a car without a radio, or without air conditioning, but this is not a car so it is not the perfect analogy, PC makers should give customers what they want and if that includes selling desktops & laptops without windows or without any OS whatsoever on it then that is what they should do, microsoft does not own the OEMs (or do they?)...

This is like buying a family sedan and saying you don't want the family they provided, as you've got your own.

It's a major part of the problem that Lenovo thinks they are selling me an operating system, and an even bigger problem that they think this is their "IP" and a value-add thing rather than just corrupt bundling.

No, not at all. Industry hasn't colluded with the car manufacturers to force you into paying a higher price for a car without a radio. In the USA, some manufacturers charge extra for the "naked" PC. I've seen this with Dell, where the so-called open source version of their PC is actually priced higher thereby discouraging its purchase.

Then what is the difference between someone selling a full pc(with or without windows) and a pre-assembled set of hardware(mobo, case, video card, etc)? You don't have to buy Windows if you buy just one component, but why for all of them?

I wonder if there's some loophole where a PC maker sells you a whole PC minus the video card insatlled, you install the video card and avoid the MS tax. I know there's some tax loophole automakers(USA automakers selling to foreign countries) had where they ship almost-assem

Actually it's more like purchasing a car and upon putting the key in the ignition and attempting to start the car, you are presented with a legal document requiring you sign away a number of your rights concerning the car.

You can, if you have the know-how, remove the manufacturer provided starter and ignition system, and replace it with your own, and thus get it running without agreeing, but are then stuck with the cost of doing that along with the cost of the original system.

Yes, but it also says that if that retailer doesn't give you a refund to contact Microsoft or a Microsoft affiliate in the region to get their refund terms. The EULA only obligates Microsoft to refund the user's money not Lenovo.

I believe Microsoft invented the idea of "licensing" software. They licensed DOS, which they bought from some other guy, to IBM and made bank. Such deals with IBM et al. allowed them to quickly dominate the relatively infant "PC" market, and the rest is history. They've been delivering abuse ever since.

I'm pretty sure IBM was licensing software long before Microsoft existed, probably before Bill Gates existed. They also got in trouble with the government for bundling hardware and software, and were subject to a consent decree until 2001. Current PC manufacturers probably can get away with bundling because they're not producing both the hardware and software.

1) Microsoft basically invented the concept of software licensing in the first place, and so got a good head-start2) Microsoft began as a software (only) company, therefore they were able to sell their OS to dozens of OEMs, and not only on their own machines (as opposed to, say, Commodore or Apple.)3) Europe/Asia/the rest of the world, for some reason, was *waaay* behind on the whole affair. What I don't get is why Japan buy Windows-- Japan was building computers for decades, it never occurred to anybody there to make a home-grown OS? Why didn't France make one? What's the UK's version of Microsoft? In fact, why is every non-English-speaking country running an OS created by the whitest of the white Americans in Redmond, WA?

I know the EULA states you can get a refund if you don't agree to the terms however, that still doesn't mean Lenevo have to give you the laptop sans windows at a cheaper rate. They can simply say "you don't won't to pay for windows? Fine, send us the laptop and we'll refund what you paid for it".

That would be a piss poor business decision on Lenovo's part to demand a refund for the entire unit. In doing so, they lose the entire sale. Wouldn't they be better off by simply refunding something like 100.00 and not losing the sale entirely? It's not like a car and an engine where the car company would endure a cost hardship by removing the engine. In this case the OS "engine," is being removed and replaced at the consumer's expense.

I wouldn't be surprised if lenovo paid something low as in $5 per license of windows when everything was said and done, and then recouped the cost of the license with bloatware. This guy would be miffed to get a $5 check and microsoft would be miffed to have their B2B cost revealed to be a tiny tiny fraction of what they gut consumers for.

Guys, I have used FreeBSD for a decade on multiple machines, some running CURRENT, and thus have had the privilege of not only listening to PHK's reasoned discussions, but also engaging in such discussions with him. I also supported his paid development project a few years ago, so you can be sure that I am *not* an unbiased contributor to this article.

That said, I am pretty sure that PHK didn't just decide over coffee or beer to sue Lenovo without giving the matter serious thought, research and consideration. Certainly, what MS charges OEMs and distributors for licenses is far less than the retail price you or I would pay, so I don't personally think that money is the issue at all. I haven't asked him personally so can't say with authority, but I would imagine that this is more about OS choice (or none) during the configure/customize process when shopping online and opting out of a MS OS up-front rather than any monetary settlement. It's the principle of the issue, not the money. At least that's how I see it and how I would like to see the outcome. Give consumers a choice to opt out of a forced MS OS, even if there is no financial benefit.

The Vista EULA specifically states:
By using the software, you accept these terms. If you do not accept them, do not use the
software. Instead, return it to the retailer for a refund or credit. If you cannot obtain a refund
there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsoftâ(TM)s
refund policies.
He chose to not accept them.

While I personally find the basis for EULA to be questionable, my lawyer friends tell me that US courts have indeed held them to be binding.

The double-edged nature of this is exactly why Lenovo should give the guy a refund. The fact that the software trades under the EULA makes the claim that it's "part of the computer" or even "part of the same sale as the computer" suspect to me. The software industry has changed the nature of the "sale" for the software, and the courts (at least in the US) have let the

The way that the whole EULA thing has shaped up does not exactly present the US Law Schools in a positive light. I am not sure how anybody could come to the decision that it would be wise to allow for parties to retroactively apply contract terms that were not previously disclosed. How did this happen? How could the very simple idea of contracts that describe mutual agreement between parties get mutilated into a tool that mainly serves to enable dishonest sales practices? My guess is that many judges rule i

That's a very common sense way of looking at it. And maybe it's even true, in Denmark.

Some people (and I hate them) think that users license software, instead of buying authorized copies, like they would buy a book. They say that title to the software never leaves the publisher. Ergo, when the computer was at Lenovo and Lenovo installed Windows on it, Lenovo didn't own a copy of that software either (Microsoft still owned it). So how did Lenovo legally do that? Why didn't Microsoft sue them for piracy? Maybe it's because there's a contract between Lenovo and Microsoft. And that contract says: if the end user doesn't want Windows, he gets a refund from Lenovo.

I think it's all bullshit, but such absurdities are the inevitable consequence of taking EULAs seriously. Microsoft and this user never met or did business in any way, so if there's somehow magically a contract between them, then something weird has to happen. Given that there's already something para-normal going on, it isn't any more of a stretch or leap of logic that Lenovo is involved too, especially since they did do business with both parties.

If i buy a car, i can't yank out the back seats and require a refund from the car dealer.

Of course not, but by the same token you won't find a sticker on the back seats saying "even though you supposedly own this car, you're not allowed to use these seats unless you agere to the following conditions...".

The right to refuse and get a refund is the only vestige of any pretense that the EULA is a contract. Without that it should be cut and dried non-enforceable. If you own the machine, including the software (and the back seats) then you can go ahead and do with it whatever you please.

Your car seats are either produced by the company that made your car, or purchased and integrated by them. Windows is resold by the guys who sell you your laptop; but it requires you to agree to a EULA, between you and Microsoft, in order to use it(compare this to your BIOS, which is almost certainly made by Phoenix or Award, not Lenovo; but is integrated by Lenovo and not licenced separately). If your car seat required a separate licence in order for it to be used, you should be able to treat it as a separate part.

Same with your other examples. As long as MS insists on having a separate EULA between it and you, its product can't be considered an intrinsic part of Lenovo, or anybody else's machines. If they started licencing it the way BIOSes, firmware, and drivers are typically licenced, I'd give the notion that it was an intrinsic component more weight.

I think that Lenovo is using an argument similar to what Apple uses to prevent Mac clones. Apple
requires acceptance of a software EULA [apple.com] when you "install the software or set up the product".
Apple sued clone-maker Psystar, who are now bankrupt [slashdot.org]. We discussed Open Tech's [slashdot.org] approach last year, but their Web site [iopentech.tk] is now vacant. Maybe they moved it here [freewebs.com], but this site does not have anything to say about OS X. So, it is not entirely clear to me that Lenovo can't win this argument -- Apple has been very successf

Or to be more exact: The contract on the Laptop is with you an Lenovo. The contract on Windows in between you an Microsoft. They are two different contracts. It's just that you pay for the Windows contract in advance to a third party. But the contract is still between *Microsoft* and you. And in this case, there is no contract at all. So Lenovo won't have to give any money to Microsoft, because logically, they would have to give it back to you. It was just a advance money *in case you take Windows*. Which h

Your car analogy works just fine, up to the point where I'm arguing that I'm owed a refund on parts of the computer HARDWARE I don't like or want to keep/use. (A refund because I dislike and don't use the touchpad? Same as complaining about back seats in a new car purchase, really.)

But THIS dispute pertains to the whole idea that a system manufacturer can pre-load another company's operating system SOFTWARE onto the computer (complete with legal agreements the end user has to click to accept as binding),

While i applaud companies that refund the microsoft tax, i do sort of see where lenovo is coming from. If i buy a car, i can't yank out the back seats and require a refund from the car dealer.

Unless they sell you the car, but stipulate that only persons aged between 19 and 20 can use the back seats, and only for approved uses. They inform you that use of the back seats is monitored and non-personally identifiable data may be sold, in aggregate to third parties. Ownership of the back seats may not be transferred so that when you sell the car the new owner must install his own back seats. Even though there are two seats, only one person may use the seats at one time. The seats will from time to time check with the manufacturer to make sure they are installed in the same car as you purchased, and if a discrepancy is found, they will not allow anyone to sit in them. They then inform you that if you don't like these terms, you can CHOOSE TO RETURN THE BACK SEATS FOR A REFUND.

The license agreement specifically states that if you do not agree with the EULA you can return it for a refund. Computer makers know this. Computer makers license it from Microsoft that way. Computer makers have to abide by it.

i buy a car, i can't yank out the back seats and require a refund from the car dealer. It is true i could sell those seats for a profit on ebay

Try to sell your copy of Windows on eBay.

it could be assumed that you pay $2000 for the laptop hardware and they throw in windows for free.

That's like saying Ford throws the steering wheel in for free. The OS has a cost, which is factored into the price of the computer. When the TV pitchman says "...and we'll throw in this other gizmo for FREE!" it's simply marketing

This is true, but I guess Apple doesn't offer a refund in the EULA.Is it just an urban legend that the EULA states that basically Windows can be given back for a refund?Apple will surely not make that mistake.If Lenovo would have wanted to sell their laptops as "systems" they would have had to ask MSFT for a Windows OEM version without that specific clause. Than, such a complaint as PHKs would be much more difficult to make in the first place.I'm sure that's all legal somehow - but I'm equally sure it's not

[quote]By the same logic I could sue apple for the apple tax on the G5, the iMac, my iphone,... it doesn't make sense at all and only in the EU could you see something like that:)[\quote]

That is quite a bit different. With Apple, the MacOS is essentially the engine that drives the platform. People purchase the Macintosh for the MacOS. Not everyone buys a PC for Windows. People buy it to run Linux, BSD, or Solaris.

First: the dude has to contact MS, if the retailer doesn't refund then they are supposed to work it out with MS directly. Not sure what MS does in that case, I'm guessing they have policies with the OEM and it becomes more of a "you honor the refund policy or we jack your license cost/stop selling to you".

Second: he probably will be upset when he gets the refund. The amount the suit is for (1000K ~ $140US) I was able to find a license of Vista Premium retail. OEM version would be more like $20-30 I'd expe

With tires you can indeed do that. If you prefer eg. Yokohama tires instead of Goodyear and your Goodyear tires are new or have a certain amount of thread remaining they will refund you an amount of money depending on the amount of thread you have left.

To go with your car analogy, Windows is like an option you didn't ask for on a new car. If the dealer puts the option on and charges you for it anyway by either burying it under some other charges, increasing the price of the car or putting in a part that req

The people with Ford SUVs with the Firestone tires that caused the SUVs to roll over were given refunds; actually, recalled for replacement. BSOD for real there, and the same reason people want BSD or Linux on their PC instead of Windows -- they consider Windows to be defective.

If I discover a loose knob on a TV set, I'm taking the TV back to the store for a refund.

Pre-installed software is often the reason. e.g. if you get a "free" anti virus program, most likely the anti-virus company has payed the hardware manufacturer to put it on there. If e.g. Opera would pay money to get their browser on it, the price would be more even.

A second reason might be that no matter what, they still have to pay Microsoft and even more if they DON'T install it.

I understand your point, but you often don't have a choice when you're buying a laptop.

For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.

Dell was cheapest by a few hundred dollars, so I called them up to see if they'd sell me the model I wanted without an OS. Of course, I got some CSR in India who couldn't understand why in the world I'd want a computer with no operating system, no matter how simply I tried to explain it (even saying just "I already have one" didn't work).

I ended up just getting XP Home and living with it.

But you would have me "go buy from someone else", despite the fact that nobody else was selling a comparable laptop without an OS for that price?

It's not about "growing up", it's about being annoyed that in order to get the hardware I wanted, I had to get software I didn't want, and I didn't really have a choice.

I'm talking about laptops, here. I build my own desktops, and I obviously don't pay for Windows for those if I don't need to.

If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.

I understand your point, but you often don't have a choice when you're buying a laptop.

For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.

This is basically the exact thinking behind phk's actions, from before the purchase and up to the law suit. You can't get a high-powered computer without also paying for a Windows license, and in his case, being a FreeBSD developer, that amounts to a forced purchase from the main competitor.

Further, the Windows EULA is odd in that *Microsoft* is setting up an agreement between two *other* parties. One party has the right to decline the EULA, and the other party is legally bound to accept that.